You have been charged with a protocol offence & a High Court judge has made an order for your proceeding to be tried in the High Court

If you have been charged with a protocol offence and a High Court judge has made an order (under section 68 of the Act) for your proceeding to be tried in the High Court, you will receive a notice informing you of the date, time and place of the court you must report to for your first High Court appearance. This appearance is usually for a Trial Review Hearing.

Trial Review Hearing

A Trial Review Hearing is held to deal with any preliminary case management issues that need to be resolved before a trial takes place. Once any issues have been resolved, a date will be set for your trial, if this has not already been done.

Some matters which may arise include:

whether you wish to change your plea for any charge. You can change your plea from not guilty to guilty at any time. You will be required to do this in person at your next scheduled appearance, or you can contact the court to arrange for an opportunity to do so;

charges for which you would like to request a sentencing indication. A sentence indication is a statement by the court that provides you with an idea of the type of sentence you would be likely to receive for a charge(s), if you pleaded guilty to that charge. A sentence indication can be requested at any time before trial;

whether you intend to make any pre-trial applications e.g. orders as to admissibility of evidence, application for continuation of name suppression etc; and

trial arrangements, including the number of witnesses you intend to call, whether any interpreters are required, the estimated duration of the trial, any facts or issues that the judge may seek clarification on.

The trial review hearing will be held in front of a judge.

Attendance

You and the prosecutor must attend the trial review hearing. If you do not attend, the court may go ahead without you (proceed in your absence) or may issue a warrant for your arrest.

After Trial Review Hearing

If you maintain your not guilty plea throughout this hearing, your case will continue progressing toward trial:

if you elected a jury trial, your case will be heard by a judge and jury, and will now progress to jury trial callover

if your case is being heard by a judge alone, your case will now progress to trial.

If you change your plea from not guilty to guilty, the court will adjourn your case to a sentencing hearing. You will likely be remanded until the date of your sentencing hearing.

Jury Trial Callover

The Hearing

In a jury trial case, the next court appearance after the trial review hearing is a trial callover. This hearing provides the judge with an opportunity to deal with procedural issues and to make sure your case is ready to proceed to trial. Once any issues have been resolved, a date will be set for your trial, if this has not already been done.

You will be sent a Notice to Unrepresented Defendant for Trial Callover before the date of your trial callover hearing. This notice will inform you of your trial callover date and location. It will also help you prepare for the callover hearing, including asking you to set out:

whether you wish to change your plea;

the details of your witnesses or any special arrangements you may need. For example, interpreters or screens; and

whether you wish to make any pre-trial applications or written submissions.

Other matters that may arise during the jury trial callover hearing include:

charges for which you would like to request a sentencing indication. A sentence indication is a statement by the court that provides you with an idea of the type of sentence you would be likely to receive for a charge(s) if you pleaded guilty to that charge. A sentence indication can be requested at any time before trial; or

information about trial arrangements, including the number of witnesses you intend to call, the estimated duration of the trial, any facts or issues that the judge may seek clarification on.

It is important that you read the entire document carefully. If you have any questions, contact the court or prosecutor immediately.

This hearing will be held in front of a judge.

Attendance

You and the prosecutor must attend the jury trial callover. If you do not attend, the court may go ahead without you (proceed in your absence) or may issue a warrant for your arrest.

Teleconference

A teleconference may also be scheduled for 2-3 weeks before the trial. This teleconference will involve you, the prosecutor and the judge, who will ensure that all parties are fully prepared for trial.

You are required to be part of the teleconference. If you fail to participate, the court may go ahead with you (proceed in your absence).

At your trial

Following your trial review hearing or jury trial callover hearing you will have been advised of:

the date, time and place of your trial; and

whether your trial is to be heard by a judge and jury, or by a judge alone.

Note: category 4 offences will usually be heard by a judge and jury. However, a judge-alone trial may be ordered if your case is likely to be particularly long and complex (see section 102 of the Act), or if there are concerns about juror intimidation (see section 103 of the Act).

Jury trial

Court proceedings are ultimately under the control of the judge. However, a general idea of how a jury trial will proceed is set out below. Examples of where a trial may proceed differently include where witnesses are giving evidence in an alternative way or where a witness is appearing by video conference.

If at any stage you are unaware of what steps are next, you should speak to the judge or court staff member as soon as possible.

A jury trial typically proceeds as follows:

(1) Trial is called

A Court Registry Officer will call the trial.

(2) Announcement of appearances

The Crown prosecutor will announce their appearances. You will then announce your appearances.

(3) Reading the charge(s)

A Court Registry Officer will read the charge or charges to you.

(4) Jury selection

The jury balloting process begins where 12 jurors will be selected to hear your case. You’ll be given a list of jurors on the day of your trial and are entitled to 4 challenges.

The statement for an unrepresented defendant contains more information about the jury selection process. A hard copy of this document will be given to you before or at your trial. Further information about jury service is also available on the Ministry’s website and is legislated for in the Juries Act 1981(external link)

(5) Plea

A Court Registry Officer will ask whether you are guilty or not guilty of the charge(s) before the court. You will be asked whether you plead guilty or not guilty to each charge.

(6) Judge’s opening remarks

At the beginning of a trial, the judge will typically make opening remarks to the jury.

(7) Crown opening statement

The prosecutor will then open the Crown case to the jury.

(8) Optional defence opening remarks

Following the prosecutor’s opening statement, you may also wish to make a brief statement to the jury. This statement should briefly explain the nature of your defence and outline the issues which you say will arise in the case. You are not required to make this statement, but have the option to do so if you wish.

(9) Crown Evidence

The prosecutor for the Crown will then call the Crown witnesses. It is the prosecutor’s responsibility to prove that you are guilty of committing the alleged offence(s) beyond a reasonable doubt.

Ensure you take notes as required. If at any time during the course of the evidence you believe that the Crown is leading evidence that is irrelevant to the charge(s) or inadmissible for some other legal reason you should stand immediately to indicate your objection. The judge will decide whether or not to uphold your objection.

You will have an opportunity to cross-examine each witness, after the prosecution has finished asking them questions. You can cross-examine on any matter that is relevant to the trial. If the prosecution wishes to clarify anything that came up during your cross-examination of their witness, they may re-examine that witness.

(10) End of Crown evidence

You may address the court at the end of the Crown prosecutor’s case.

If you believe that the Crown evidence is insufficient to prove that you committed the offence(s), you may submit that there is no case to answer at this stage of the trial. If the judge agrees, the matter may be dismissed and you may be acquitted without presenting evidence. This is extremely rare. If the judge does not accept the submission, the case continues.

(11) Defence evidence

After the close of the Crown case, you will be given the opportunity to present defence evidence, if you wish to do so.

After you plead not guilty to a crime, it is the prosecutor’s role to prove beyond a reasonable doubt that you are guilty of committing the offence(s) you have been charged with. You do not have to prove your innocence.

If you wish to present evidence though, you can chose to give evidence yourself, call others to give evidence on your behalf, or both. All evidence must be given under oath or affirmation and the Crown will have the right to cross-examine you (if you present evidence yourself) and any witnesses you call. For more information about presenting evidence, including the risks of doing so, refer to the how to present your evidence on the day of your trial section of this guide.

If you do decide to present evidence, you may first wish to make an opening statement. An opening statement usually provides the jury with a summary of your defence, and an outline of the witnesses and evidence you intend to call. What you say in this opening statement is not evidence.

If you are giving evidence yourself, you will then testify. This is referred to as evidence-in-chief.

If you are not giving evidence yourself, but are calling witnesses (including expert witnesses) to give evidence on your behalf, you can call your witnesses. It is important that you ensure all witnesses are kept outside of the courtroom until they are called to give evidence. This is to avoid witnesses hearing the evidence of other witnesses. Once called to testify, each witness will take the witness stand and be sworn or affirmed. You may then ask them questions. This is referred to as examination-in-chief.

If you believe it is necessary for one of your witnesses to give evidence in an alternative way (such as giving evidence behind a screen), you will need to apply to the judge to give that direction. More information about making applications in the prescribed format is available on the Ministry’s website.

If you are giving evidence yourself, and also intending to call witnesses, you will typically be the first witness and will testify before calling your other witnesses.

You may also tender as evidence any documents that are admissible. You can either do this during your evidence, or through witnesses who are able to identify and testify as to the nature of the particular document. If you do wish to present documents in evidence, you should bring the originals if possible, as well as at least 15 copies for the jury, other counsel, and the judge.

Following your evidence-in-chief or examination-in-chief of your first witness, the Crown prosecutor may cross-examine you or that witness.

Following cross-examination of yourself, or of any of your witnesses, you may re-examine.

(12) Handing up evidence

If you have anything you want to hand up to the judge, you should first show it to the prosecutor (in court), and then hand it up (via the Registrar) at the appropriate point in your evidence.

(13) Expert evidence

The court may allow you to call witnesses (for example, an expert witness) immediately after the prosecutor has called a particular witness or witnesses (i.e. out of the usual order). Note that neither you nor the prosecutor can make submissions on the facts or address the court on the evidence given by either party at this stage.

(14) Crown closing address

When all evidence is completed, the Crown Prosecutor will address the jury

(15) Defence closing address

Following the Crown closing address, you will address the jury. Your address to the jury is your opportunity to briefly summarise the evidence and try to convince the jury why they should decide the case in your favour.

What you say during your closing address is not evidence.

(16) Judge’s Summing up

After the closing addresses have been given, the judge will summarise the whole case for the jury. The jury will then retire to deliberate.

(17) Jury verdict

Once the jury has deliberated and reached a verdict, all parties will be brought back into open court. If the jury cannot reach a unanimous verdict, they may be allowed to reach a majority verdict(external link). This is when all but one of the jurors have agreed on the verdict.

The verdict will be given by the jury foreperson. The foreperson is the person who speaks on behalf of the jury throughout the trial.

(18) After the verdict is given

If you are found not guilty, you will be discharged, and you will be free to go.

If you are found guilty, the court will adjourn your case to a sentencing hearing. You will likely be remanded until the date of your sentencing hearing. You will usually be required to stay in court until the appropriate paperwork has been prepared for you to be remanded, if you have been remanded on bail.

The Jury will be discharged.

Judge-alone trial

Court proceedings are ultimately under the control of the judge. However, a general idea of how a judge-alone trial will proceed is set out below. Examples of where a trial may proceed differently include where witnesses are giving evidence in an alternative way or where a witness is appearing by video conference.

If at any stage you are unaware of what steps are next, you should speak to the judge or court staff member as soon as possible.

A judge-alone trial typically proceeds as follows:

(1) Trial is called

A Court Registry Officer will call the trial.

(2) Announcement of appearances

The Crown prosecutor will announce their appearances. You will then announce your appearances.

(3) Reading of the charge(s)

A Court Registry Officer will read the charge or charges to you.

(4) Plea

A Court Registry Officer will ask whether you are guilty or not guilty of the charge(s) before the court. You will be asked whether you plead guilty or not guilty to each charge.

(5) Judge’s opening remarks

At the beginning of a trial, the judge will typically make opening remarks.

(6) Crown Evidence

The prosecutor for the Crown will then call the Crown witnesses. It is the prosecutor’s responsibility to prove that you are guilty of committing the alleged offence(s) beyond a reasonable doubt.

Ensure you take notes as required. If at any time during the course of the evidence you believe that the Crown is leading evidence that is irrelevant to the charge(s) or inadmissible for some other legal reason you should stand immediately to indicate your objection. The judge will decide whether or not to uphold your objection.

You will have an opportunity to cross-examine each witness, after the prosecution has finished asking them questions. You can cross-examine on any matter that is relevant to the trial. If the prosecution wishes to clarify anything that came up during your cross-examination of their witness, they may re-examine that witness.

(7) End of Crown evidence

You may address the court at the end of the Crown prosecutor’s case.

If you believe that the Crown evidence is insufficient to prove that you committed the offence(s), you may submit that there is no case to answer at this stage of the trial. If the judge agrees, the matter may be dismissed and you may be acquitted without presenting evidence. This is extremely rare. If the judge does not accept the submission, the case continues.

(8) Defence evidence

After the close of the Crown case, you will be given the opportunity to present defence evidence, if you wish to do so.

It is important to note that you are not required to present any defence evidence (refer to section 25(d) of the New Zealand Bill of Rights Act 1990(external link)). After you plead not guilty to a crime, it is the prosecutor’s role to prove beyond a reasonable doubt that you are guilty of committing the offence(s) you have been charged with. You do not have to prove your innocence.

If you wish to present evidence though, you can chose to give evidence yourself, call others to give evidence on your behalf, or both. All evidence must be given under oath or affirmation and the Crown will have the right to cross-examine you (if you present evidence yourself) and any witnesses you call. For more information about presenting evidence, including the risks of doing so, refer to the how to present your evidence on the day of your trial section of this guide.

If you do decide to present evidence, you may first wish to make an opening statement. An opening statement usually provides the judge with a summary of your defence, and an outline of the witnesses and evidence you intend to call. What you say in this opening statement is not evidence.

If you are giving evidence yourself, you will then testify. This is referred to as evidence-in-chief.

If you are not giving evidence yourself, but are calling witnesses (including expert witnesses) to give evidence on your behalf, you can call your witnesses. It is important that you ensure all witnesses are kept outside of the courtroom until they are called to give evidence. This is to avoid witnesses hearing the evidence of other witnesses. Once called to testify, each witness will take the witness stand and be sworn or affirmed. You may then ask them questions. This is referred to as examination-in-chief.

If you believe it is necessary for one of your witnesses to give evidence in an alternative way (such as giving evidence behind a screen), you will need to apply to the judge to give that direction. More information about making applications in the prescribed format is available on the Ministry’s website.

If you are giving evidence yourself, and also intending to call witnesses, you will typically be the first witness and will testify before calling your other witnesses.

You may also tender as evidence any documents that are admissible. You can either do this during your evidence, or through witnesses who are able to identify and testify as to the nature of the particular document. If you do wish to present documents in evidence, you should bring the originals if possible, as well as at least 3 copies for other counsel and the judge.

Following your evidence-in-chief or examination-in-chief of your first witness, the Crown prosecutor may cross-examine you or that witness.

Following cross-examination of yourself, or of any of your witnesses, you may re-examine.

(9) Handing up evidence

If you have anything you want to hand up to the judge, you should first show it to the prosecutor (in court), and then hand it up (via the Registrar) at the appropriate point in your evidence.

(10) Expert evidence

The court may allow you to call witnesses (for example, an expert witness) immediately after the prosecutor has called a particular witness or witnesses (i.e. out of the usual order). Note that neither you nor the prosecutor can make submissions on the facts or address the court on the evidence given by either party at this stage.

(11) Judge’s decision

Once all evidence has been given, the judge will consider the evidence and give their decision. The judge may give the decision at the time, or at a later date.

If the judge decides to retire to consider the decision, or reserve it until a later date, in order to consider the case further, the case will be adjourned and you will likely be remanded. A Court Registry Officer will advise you when the decision is ready.

(12) After the decision is given

If you are found not guilty, the judge will discharge you and you will be free to go.

If you are found guilty, the court will adjourn your case to a sentencing hearing. You will likely be remanded until the date of your sentencing hearing. You will usually be required to stay in court until the appropriate paperwork has been prepared for you to be remanded, if you have been remanded on bail.

Attendance at your trial

You must attend your trial on the date given. If for some genuine reason you have been delayed in getting to court or you are unable to attend, you should contact the court(external link) as soon as possible with your reasons. You may be asked to provide supporting material to prove why you were delayed or not able to attend.

If you do not have a valid reason, and you do not appear in court, the court may go ahead without you (proceed in your absence) or may issue a warrant for your arrest. This means that the Police may arrest you. You will either be taken to court, or placed in custody until the next sitting of the court.